COMMONWEALTH OF MASSACHUSETTS

Bureau of Special Education Appeals

BSEA# 05-4126

Ruling on the School’s Motion to Join DMH and DMR

This matter comes before the BSEA on the Motion of the Ware Public Schools to Join the Department of Mental Health (“DMH) and the Department of Mental Retardation (“DMR”) in this appeal. Ware initially filed a request for hearing on April 12, 2005, seeking a finding that Wallace’s current therapeutic day placement is the least restrictive appropriate special education program for him and thus that Ware is not responsible for providing either additional respite and support services in Wallace’s home, nor the residential portion of any potential therapeutic residential placement. On May 6, 2005, Ware filed a Motion to Join DMH and DMR arguing that one or both of those state agencies should provide the additional in home services necessary to permit Wallace to attend the therapeutic day placement that provides him with a FAPE in the least restrictive setting. Both agencies oppose joinder. The Parents support the School’s Motion to Join.

Arguments on the School’s Motion to Join were originally heard by telephone conference on June 17, 2005. An interim ruling was issued on June 24, 2005. The Motion hearing was reconvened on July 8, 2005. The School District, DMH and DMR are represented by counsel. The Parents are proceeding pro se .

Factual Background

Although many factual issues remain to be resolved should this matter proceed to hearing, the pertinent facts for the purpose of this Motion are not in dispute and may be briefly summarized:

1. Wallace is a 12 year old resident of Ware, MA with complex educational needs. He has been diagnosed with Asperger’s Syndrome, Bi-Polar Disorder, Attention Deficit Hyperactivity Disorder, Oppositional Defiant Disorder, and Obsessive-Compulsive Disorder. Recent tests of intellectual potential produced scores solidly in the average range. His cognitive style is an unusual combination of impulsivity, distractibility, and rigidity. His behavior is characterized by frequent and unpredictable temper-tantrums, intense ragefulness, often accompanied by physical aggression, rapid shifts in mood between grandiosity and manic activity on the one hand and irritability and angry withdrawal on the other. Wallace functions best, in the highly structured therapeutic environment at school. (Parents, School, expert evaluations, IEPs)

2. Wallace attends the therapeutic educational program at the Valley West Day School. Valley West is a Massachusetts approved private special education facility. He is placed in a small, self-contained classroom with five students and two teachers. Although he is making academic progress commensurate with his intellectual potential, his behaviors, attitudes, and thinking are frequently inappropriate. Valley West reports that Wallace lacks self-control, and social pragmatics. He is impatient, intolerant and has a fragile sense of self. There are no apparent precipitators for his inappropriate, and frequently aggressive, behavior.

3. In addition to the day program at Valley West, Ware provides a 1:1 aide to Wallace in its own after school program.

4. At home Wallace has frequent, unpredictable behavioral outbursts which have resulted in violence toward family members. He is hyperactive, moody, cross, withdrawn, hypersexual and oppositional. His family provides constant supervision, structure and redirection during all non-school hours. Nonetheless Wallace continues to evade family rules and behave inappropriately in the house, the neighborhood and the community.

5. During the spring, 2004, Wallace and his family participated in the Collaborative Assessment Program (“C AP”) . “CAP” is a joint initiative involving the Department of Social Services and the Department of Mental Health. It’s aim is to identify service needs which, if addressed, will strengthen a family’s capacity to keep a child in her/his home and community and avoid residential placement. On June 18, 2004, the family received a letter outlining the results of the “CAP” for Wallace. In pertinent part it reads:

The Collaborative Assessment Program has completed your family assessment and has determined that [Wallace] is not eligible for services through the Department of Mental Health or the Department of Social Services. The Department of Mental Retardation has found [Wallace] eligible for services and is the agency assigned to provide services for him. There are no background documents in the record which would indicate the basis of the assertions contained in this letter. The DMR did not participate in the CAP.

6. The Parents understood the June 18, 2005 letter on official EEOHS stationary to be a denial of eligibility for DMH services. They are not interested in pursuing voluntary services through DSS. (Parents)

7. The CAP process is not equivalent to a DMH determination of eligibility process pursuant to 104 CMR 29.00 et seq . The family has never formally applied directly to DMH for a determination of Wallace’s eligibility for DMH funded and/or provided services. (DMH)

8. DMH does not provide respite or in-home support services to eligible children. The only DMH funded/operated service that would be provided to Wallace were he to be determined eligible would be specialized foster care. (DMH)

9. In August 2004, Dr. Bruce Ecker conducted a comprehensive psychological and neuropsychological evaluation of Wallace. He concluded that Wallace has at least average cognitive functioning and a variety of psychiatric diagnosis; including: Bipolar I Disorder; and Oppositional Defiant Disorder. (Ecker report)

10. For several years DMR had provided a modest annual stipend to Wallace’s family to help defray expenses for in-home respite care for Wallace. As a result of Dr. Ecker’s conclusion that Wallace has average cognitive potential, DMR conducted a redetermination of his eligibility for services. On November 3, 2004, DMR notified the family that it had determined that Wallace could no longer receive DMR services because he did not meet the clinical criteria for eligibility as a child with developmental disabilities. (DMR letter) The Parents did not appeal DMR’s formal determination of ineligibility. (Parents; DMR)

11. The Team met on October 26, 2004 and February 10, 2005, to discuss Wallace’s ongoing needs. The Team determined that Valley West is the appropriate educational placement for Wallace and that Wallace needs extensive respite and in-home services during non-school hours in order to access the Valley West program. The Team also determined that without appropriate “wrap around” services, Wallace will require placement in an intensive residential program which is substantially more restrictive than the currently appropriate program he successfully attends at Valley West. (School; IEP)

12. The Parents agree that Wallace is making educational progress at the Valley West Day School. They also agree that he needs intensive support, supervision and instruction outside of the school day in order to maintain his placement at the Valley West Day School.

13. On July 1, 2005, the DMR became responsible for setting up a Division of Autism within the DMR to provide contracted support services for families with autistic children. DMR has not yet determined the eligibility criteria nor the application procedures nor the type or location of service(s), that the new Division will administer. (DMR)

Discussion

As eloquently pointed out by counsel for the School District this matter involves a child and his family truly and heartbreakingly falling through the cracks in our social service system. Rather than concentrating resources and expertise in a single entity as some states do, the Commonwealth has chosen to divide responsibility for necessary services to children with serious, multiple disabilities among several state agencies which have limited mandates, limited service parameters and limited funding.

At times this fractured approach to children’s services results in confusion and frustration for the family, unconscionable delays in identifying or delivering necessary services, the delivery of inappropriate services, or none at all. There have been attempts by children’s advocates, human service agencies and the legislature over the years to address the inefficiencies and inequities wrought by this system, notably in the grant of jurisdiction to the BSEA to join state agencies in special education appeals to ensure FAPE. Thus I am deeply chagrined to find that today I must contribute yet another setback in the quest to develop a unitary and comprehensive service system for Massachusetts students with disabilities.

There is no dispute that the Bureau of Special Education Appeals may assert jurisdiction over state agencies that provide specialized services to children when necessary to ensure the provision of a free, appropriate public education to an eligible student in the least restrictive setting. BSEA Rule 1F, 603 CMR 28.03 (3), Chapter 159, Section 162 of the Acts of 2000, amending MGL c. 71B § 3 (hereinafter “Section 162”). In Re: Medford Public Schools , 7 MSER 75 (2001); In Re: Boston Public Schools , 8 MSER 198 (2002)

That jurisdiction is limited, however, by the requirement that a Hearing Officer must act “in accordance with” with the statues, regulations and policies of the particular state agency which is the subject of the joinder motion. Section 162. Each state agency has its own grant of authority to determine the kinds/classes of client it will serve and the kinds/classes of services it will provide.

The arguments presented in this matter illustrate the difficulties posed by this scenario. The School and Parents assert that the Student is receiving a free, appropriate public education in the least restrictive environment in his therapeutic day placement at the Valley West Day School. They contend that in order to continue to receive FAPE the Student requires some in-home supervision and support during non-school hours.2 Because the Student’s special education needs are being fully met in his day placement, they state, another agency should be responsible pursuant to Section 162 for providing those additional services which will permit the Student to continue to benefit from his educational placement. They argue that Wallace qualifies for services from DMH due to his diagnosis of bi-polar disorder, and is eligible for DMR services because he has a chronic, pervasive, developmental disability.

DMR responds that Wallace is categorically ineligible for services because he is not mentally retarded. The family was notified of this determination and did not appeal within the applicable time limit. Although Wallace may be eligible for some service through the newly established Division of Autism when that is operational, DMR contends that the School is responsible for addressing any current identified service need not provided for by a state human service agency as the school is ultimately responsible for ensuring that students don’t “fall through the cracks”.

DMH states that it may not provide any service to Wallace until a formal application for an eligibility determination is filed by his Parents and accepted by DMH. 104 CMR 29.00 et seq . Thus far no formal eligibility application on behalf of Wallace has been received. The CAP assessment is not an application for an eligibility determination. Counsel did note that DMH categorically excludes individuals with developmental disabilities, such as Asperger’s Disorder, from DMH services. She also noted that the only service DMH would offer were Wallace determined to be eligible would be one the Parents would reject: specialized foster care.

This is a perfect illustration of a fragmented system that hews carefully to its statutory grant of mission. Certainly the legislature did not intend that rigid application of spheres of disability services would result in unnecessary placements in residential schools or surrenders of custody to the Department of Social Services. Yet without a more flexible set of definitions, services, and funds, that may be the result for this family, and for others like them.

Turning directly to the facts I have before me I am constrained to find no substantial basis to order joinder of DMH or DMR in this case. There is no evidence that either DMH or DMR is currently or potentially obligated under their own regulations to provide any service at all to Wallace at this time. Without such a showing I cannot conclude that the action or inaction of DMH or DMR is interfering with the delivery of FAPE to Wallace. In Re: Lunenburg Public Schools 10 MSER 478 (2004)

Both agencies provide services on a voluntary basis and require action on the part of the potential client to access and authorize those services. There has been no showing here that the family has initiated the DMH eligibility process outlined in 104 CMR 29.00 et seq . Therefore consideration of the potential role of DMH in service delivery to Wallace and his family is premature. The School and the family argued that the family’s reliance on the misleading language in the CAP report caused them to forgo the necessary eligibility determination procedures for DMH. They assert that the BSEA could provide a remedy for their justifiable confusion through the joinder of DMH in this action. It cannot. A BSEA Hearing Officer should not be inserted into an internal agency eligibility or service determination process without a substantial showing of agency misaction. Here the mistake was the family’s. Similarly, Wallace is not currently a client of DMR. After a redetermination of his eligibility in the fall, 2004, DMR found that he was no longer entitled to services. The family did not follow the internal appeal procedures to challenge that November 2004 determination and it became final. DMR regulations provide that, absent changed circumstances, a family must wait one year before re-applying for an eligibility determination. 115 CMR 6.00 et seq . The procedures for applying to the new Division of Autism for assistance have not yet been established. Therefore I am unable to find that DMR currently owes any duty of service to Wallace or his family. Without that finding, joinder is inappropriate. See : In Re : Ipswich Public Schools , 8 MSER 185 (2002); In Re : Attleboro Public Schools , 8 MSER 326 (2002);

It may be that after the appropriate procedures to determine Wallace’s eligibility for services through DMH and DMR have been followed the Bureau could revisit the joinder issue in this case. The agency process need not be lengthy. Wallace’s evaluations are current, his school and family are good and knowledgeable advocates, and the timelines for agency action on eligibility applications are typically brief. See e.g . 104 CMR 29.04 which allows 20 days for a DMH eligibility determination. The School and the Parent may also devise some other creative way to ensure that Wallace continues to receive appropriate special education programming in the least restrictive environment.

Order

The Motion of the Ware Public Schools to Join the Department of Mental Health and the Department of Mental Retardation in this appeal is DENIED . The School and the Parents shall contact the BSEA scheduling coordinator within ten days of this ruling to arrange mutually convenient dates for hearing.

While for the purposes of this Motion Hearing the School and the Parents characterized the type and extent of the support they sought from DMH and DMR as “respite”, I note that the requested in-home services were not extensively discussed. Given the lack of evidence on the necessary in-home supports, and the Parents’ lack of legal representation at this stage of the proceedings, it is foreseeable that the description of necessary in-home services could change at a hearing on the merits.

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